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Sociology of law

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The sociology of law (or legal sociology) is often described as a sub-discipline of sociology or an interdisciplinary approach within legal studies.[1] While some socio-legal scholars see the sociology of law as "necessarily" belonging to the discipline of sociology,[2] others see it as a field of research caught up in the disciplinary tensions and competitions between the two established disciplines of law and sociology.[3] Yet, others regard it neither as a sub-discipline of sociology nor as a branch of legal studies and, instead, present it as a field of research on its own right within a broader social science tradition. For example, Roger Cotterrell describes the sociology of law without reference to mainstream sociology as "the systematic, theoretically grounded, empirical study of law as a set of social practices or as an aspect or field of social experience".[4]

Irrespective of whether the sociology of law is defined as a sub-discipline of sociology, an approach within legal studies, or a field of research in its own right, it remains intellectually dependent mainly on mainstream sociology, and to lesser extent on other social sciences such as social anthropology, political science, and psychology, i.e. it draws on social theories and employs social scientific methods to study law, legal institutions and legal behaviour.[5] More specifically, the sociology of law consists of various sociological approaches to the study of law in society, which empirically examine and theorize the interaction between law and legal institutions, on the one hand, and other (non-legal) social institutions and social factors, on the other.[6] Areas of socio-legal inquiry include the social development of legal institutions, forms of social control, legal regulation, the interaction between legal cultures, the social construction of legal issues, legal profession, and the relation between law and social change.

The study of law played a significant role in the formation of classical sociology and social anthropology.[7] The sociological studies of law have, however, been neglected within recent sociological research and teaching. Mainstream sociology continues to neglect law in spite of the fact that law’s normative role in guiding action and shaping relationships has been increasing as societies become ethno-culturally more diverse and socio-politically more complex. It is, therefore, argued that mainstream sociology has more to learn from studying law in contemporary society, than when Durkheim[8] famously described law as the "visible symbol" of social solidarity.[9]


History

The sociology of law became an academic field of learning and research, arguably, after the Second World War[citation needed]. However, its roots are much older and can be traced back to the works of sociologists and jurists of the turn of the previous century. One important landmark in this context is the publication of Fundamental Principles of the Sociology of Law [original title: Grundlegung der Soziologie des Recht) in 1913 by Eugen Ehrlich.

The sociology of law was subjected to criticism by the advocates of legal positivism from the outset. The influential Austrian jurist Hans Kelsen criticised Eugen Ehrlich's Fundamental Principles of the Sociology of Law for distinguishing between "law created by the state and law produced by the organisational imperatives of non-state social associations".[10] According to Kelsen, Ehrlich had confused Sein (“is”) and Sollen (“ought”).[11] However, Ehrlich was distinguishing between positive (or state) law, which lawyers learn and apply, and other forms of 'law', what Ehrlich called “living law”, that regulate everyday life, generally preventing conflicts from reaching lawyers and courts.[12]

Around 1900 Max Weber defined his "scientific" approach to law, identifying the "legal rational form" as a type of domination, not attributable to people but to abstract norms.[13] Legal rationalism was his term for a body of coherent and calculable law which formed a precondition for modern political developments and the modern bureaucratic state and developed in parallel with the growth of capitalism.[14] Another classic sociologist, Émile Durkheim, wrote in The Division of Labour in Society that as society becomes more complex, the body of civil law concerned primarily with restitution and compensation grows at the expense of criminal laws and penal sanctions.[15] Durkheim also argued that a sociology of law should be developed alongside, and in close connection with, a sociology of morals, studying the development of value systems reflected in law. Other notable early legal sociologists included Hugo Sinzheimer, Theodor Geiger, Georges Gurvitch and Leon Petrażycki in Europe, and William Graham Sumner and Nicholas Timasheff in the U.S.[16]

The Founders of the Sociology of Law

Émile Durkheim

The relationship between law and society was sociologically explored in the seminal works of both Max Weber and Émile Durkheim. The writings on law by these scholars are foundational to the entire sociology of law today.[17] A number of other scholars, mainly jurists, also employed social scientific theories and methods in an attempt to develop sociological theories of law. Among these we find Leon Petrazycki, Eugen Ehrlich and Georges Gurvitch.

Emile Durkheim (1858–1917)

Émile Durkheim wrote about law extensively in his important book on the social division of labour. Law is an indicator of the mode of integration of a society, which can be mechanical, among identical parts, or organic, among differentiated parts such as in industrialized societies. Over the course of history, law undergoes a transformation from repressive law to restitutive law. Restitutive law operates in societies in which there is a high degree of individual variation and emphasis on personal rights and responsibilities. Though Durkheim is best known in socio-legal scholarship for the theses of his first book The Division of Labour in Society his later works contain much other, often differently oriented but no less significant, writing about law.[18]

Eugen Ehrlich (1862–1922)

The Austrian jurist Eugen Ehrlich developed a sociological approach to the study of law by focusing on how social networks and groups organized social life.[19] He explored the relationship between law and general social norms and distinguished between “positive law,” consisting of the compulsive norms of state requiring official enforcement, and “living law,” consisting of the rules of conduct that people in fact obeyed and which dominated social life. The latter emerged spontaneously as people interacted with each other to form social associations.[20]

Max Weber

Max Weber (1864–1920)

Max Weber was trained in the law and wrote about it extensively in his sociological writings. Weber formulated the sociology of law as an external approach to law that studies the empirical characteristics of law, as opposed to the internal perspective of the legal sciences and the moral approach of the philosophy of law. Central to the development of modern law for Weber was the formal rationalization of law on the basis of general procedures that are applied equally and fairly to all. Modern rationalized law is also codified and impersonal in its application to specific cases.

Leon Petrazycki (1867–1931)

The Polish-Russian jurist Leon Petrazycki distinguished between forms of “official law,” supported by the state, and “intuitive law,” consisting of legal experiences that, in turn, consist of a complex of psychic processes in the mind of the individual with no reference to outside authorities.[21] Petrazycki’s work addressed sociological problems and his method was empirical, since he maintained that one could gain knowledge of objects or relationships only by observation. However, he couched his theory in the language of cognitive psychology and moral philosophy rather than sociology. Consequently, his contribution to the development of sociology of law remains largely unrecognized.[22]

Leon Petrazycki

Theodor Julius Geiger (1891–1951)

Theodor Geiger was born in Munich, Germany, but was forced into exile due to his anti-nazi sympathies. He moved to Denmark in 1933 where he became a naturalised citizen. Geiger is regarded as a "pioner of sociology in Denmark" [23]. He "developed a close-knit analysis of the Marxist theory of law, highlighting how law becomes a focal factor in social transformation in democratic societies of the kind that are governed by the consent expressed by universal suffrage of the population practised at regular intervals".[24] Later, when Germans invaded Denmark, Geiger moved to Sweden where, according to Morris L. Ghezzi, "he came into direct contact with the Uppsala school, in particular with Axel Hägerström: it was in this context that he developed the salient characteristics of his antimetaphysical thinking. He was then to develop this school’s theoretical nihilist thinking until he exceeded it with practical nihilism, which did not stop at just denouncing the falseness of all values, but went further to discourage their use, because of the irrational emotivity they may trigger. Geiger’s nihilism of values therefore paved the way for a precise form of legal nihilism, which encourages the construction of a sober democracy, i.e. one that is capable of raising conflict to the intellectual level and of anaesthetising feelings, as it is aware of its own inability to make any proclamation of value, ethics or policy about the nature of truth".[25]

Georges Gurvitch (1894–1965)

Georges Gurvitch was born in Russia, but spent most of his life in France, where he succeeded to Émile Durkheim’s chair at the Sorbonne. He was interested in the fusion of simultaneous manifestation of law in various forms and at various levels of social interaction. His aim was to devise the concept of “social law” as a law of integration and cooperation[26]. "Although reminiscent of Leon Petrazycki’s (1867-1931) intuitive law and Eugen Ehrlich’s living law, Gurvitch’s social law was an integral part of his general sociology and, thus, a theoretical construct in its own right. It is also one of the early sociological contributions to the theory of legal pluralism, since it challenged all conceptions of law based on a single source of legal, political, or moral authority".[27]

Renato Treves (1907–1992)

Renato Treves, born in Turin, Italy, in 1907, is among the scholars who worked to develop a sociological approach to the study of law. According to Vincenzo Ferrari “Treves kept faith with a Weberian and Kelsenian vision of sociology of law, as distinct from legal science. He advocated empitical research as a means of testing theories critically and favored open as opposed to closed social portraits of law. Primarily, he argued in favour of a perspectivist and relativistic vision of law and society, combating all kinds of absolutism in both science and politics, from a liberal socialist stance that he upheld in many of his writings.[28]

Treves was the first president of the Research Committee on Sociology of Law and the founder of Sociologia del Dritto which is the Italian journal of the sociology of law.

Also see the separate entry on Treves [1]

Jean Carbonnier (1908–2003)

Jean Carbonnier, the successor to Georges Gurvitch’s chair in Sorbonne, represented the French legal sociology within the international community of socio-legal scholars for more than a half a century. André-Jean Arnaud writes that although Cabonnier was an ardent supporter of the sociology of law (he supported both the Research Committee on Sociology of Law (RCSL) and the establishment of the International Institute for the Sociology of Law (IISL), he nonetheless regarded legal sociology as an “auxiliary science”.[29] Arnaud adds that Carbonnier considered “nonlaw” as the essence of social life: “lawsuits were a pathology. In this mood, he directed his attention to custom, case law and equity. However as a jurist, he considered himself involved in the social system in which he had to play a role, although with some scepticism, not believing in perfection, but deeming that the virtues of liberalism can stimulate legal evolution sufficiently to answer social necessities”.[30]

See the separate entry on Jean Carbonnier

Philip Selznick (1919)

Philip Selznick, jurist and legal sociologists, is professor emeritus of law and society at the University of California, Berkeley. A noted author in organizational theory, sociology of law and public administration,[31] Selznick's work has been groundbreaking in several fields in such books as The Moral Commonwealth, TVA and the Grass Roots, and Leadership in Administration.

See the separate entry on Philip Selznick.

Johan Vilhelm Aubert (1922–1988)

Vilhelm Aubert was an influential Norwegian jurist and Professor of sociology at the University of Oslo between 1963 and 1988. He was one of the co-founders of the Norwegian Institute for Social Research in 1950. He contributed greatly to the establishment of the sociology of law in the Nordic countries and his pioneering empirical study of the Norwegian Housemaid Act remains one of the important pieces of early research in the sociology of law.

In this study, together with his two collaborators, Eckhoff and Sveri, Aubert “ascertained discrepancies between ideals as expressed in the statute and actual working conditions. The law had few consequences on actual behavior, but the Act nevertheless functioned as a sociocultural symbol. indicating that values of labor protection were widely accepted. Although a penal clause was attached to the law, as the custom is, the conditions for its use were such as to prevent its application in practice. It was a typical legislative compromise, unrelated to the achievement of manifest goals. The idea of latent functions presented itself’ (Aubert 1989a:13). The widespread mistake that the passing of a law in parliament also meant that it was implemented in practice according to intention, or that Acts often function to give the impression that things are also changing in reality, became leitmotifs in Aubert’s work. In this work he found that ’Merton’s paradigm for functional analysis was very useful’ (Aubert l981: 13)”.[32]

See the separate entry on Vilhelm Aubert.

Adam Podgórecki (1925–1998)

Adam Podgórecki is an internationally renowned legal sociologist and one of the founders of the the Research Committee on Sociology of Law (RCSL). He carried out a systematic programme of socio-legal research throughout his academic life, wrote and published widely in both Polish and English and developed a unique socio-legal line of inquiry which can be traced back to Leon Petrazycki’s theory of “intuitive law”. [33] According to Adam Czarnota, Podgorecki developed his social theory “in opposition to the Marxist theory of law and the state. He stressed the importance of empirical comparative material guided by theoretical hypothesis. Crucial for him was the typology, derived from Petrazycki, of intutitive and official law”.[34]

Sociological Approaches to the Study of Law

Modern sociology of law

After World War II, the study of law was not central in sociology, although some well-known sociologists did write about the role of law in society. In the work of the Talcott Parsons, for instance, law is conceived as an essential mechanism of social control. In response to the criticisms that were developed against functionalism, other sociological perspectives of law emerged. Critical sociologists developed a perspective of law as an instrument of power. However, other theorists in the sociology of law, such as Philip Selznick, argued that modern law became increasingly responsive to a society's needs and had to be approached morally as well. Still other scholars, most notably the American sociologist Donald Black, developed a resolutely scientific theory of law on the basis of a paradigm of pure sociology. Equally broad in orientation, but again different, is the autopoietic systems theory of the German sociologist Niklas Luhmann, who sees law as unable to communicate with other social institutions because of the rigidity of its binary code of guilty/innocent. Social philosopher Jurgen Habermas disagrees with Luhmann and argues that the law can do a better job as a 'system' institution' by representing more faithfully the interests of everyday people in the 'lifeworld'. Perhaps the most sophisticated and critical sociological theory of law and lawyers is that of Pierre Bourdieu, who sees law as a social field in which actors struggle for cultural, symbolic and economic capital and in so doing develop the reproductive professional habitus of the lawyer.

In more recent years, a very wide range of theories has emerged in the sociology of law as a result of the proliferation of theories in sociology at large. Among the recent influences can be mentioned the work of the French philosopher Michel Foucault, the German social theorist Jürgen Habermas, feminism, postmodernism and deconstruction, neo-Marxism, and behaviorism. The variety of theoretical influences in the sociology of law has also marked the broader law and society field. However, although the multi-disciplinary law and society field remains very popular, the disciplinary speciality field of the sociology of law is today also "better organized than ever in institutional and professional respects."[35]

Law and Society

Law and Society is primarily an American movement, which was established after the Second World War through the initiative mainly of sociologists who had a vested interest in the study of law.[36] The main difference between the sociology of law and Law and Society is that the latter does not limit itself theoretically or methodologically to sociology and tries instead to accommodate insights from all social science disciplines.[37] "Not only does it provides a home for sociologists and social anthropologists and political scientists with an interest in law, it also tries to incorporate psychologists and economists who study law." [38].

Sociological Jurisprudence

The sociology of law is often distinguished from sociological jurisprudence. The latter is not primarily concerned with debates within mainstream sociology and instead engages with some of the debates within jurisprudence and legal theory. Sociological jurisprudence seeks to base legal arguments on sociological insights and, unlike legal theory, is concerned with the mundane practices that create legal institutions and social operations which reproduce legal systems over time. It was developed in the United States by Roscoe Pound and by earlier jurists, such as Eugen Ehrlich and Georges Gurvitch, in Europe[39].

Although distinguishing between different branches of the social scientific studies of law allows us to explain and analyse the development of the sociology of law in relation to mainstream sociology and legal studies, such potentially artificial distinctions are not necessarily fruitful for the development of the field as whole. For the social scientific studies of law to transcend the theoretical and empirical limits, which currently define their scope, they need to go beyond such artificial distinctions.[40]

'Socio-Legal Studies' in the UK has grown mainly out of the interest of law schools in promoting interdisciplinary studies of law.[41] Whether regarded as an emerging discipline, sub-discipline or a methodological approach, it is often viewed in light of its relationship to, and oppositional role within, law.[42] It should not, therefore, be confused with the legal sociology of many West European countries or the Law and Society scholarship in the US, which foster much stronger disciplinary ties with social sciences. In the past, it has been presented as the applied branch of the sociology of law and criticised for being empiricist and atheoretical.[43] Max Travers, for example, regards Socio-Legal Studies as a subfield of social policy, ‘mainly concerned with influencing or serving government policy in the provision of legal services’[44] and adds that it ‘has given up any aspirations it once had to develop general theories about the policy process’ [45].

The sociology of law has no methods of investigation which have been developed specifically for conducting socio-legal research. Instead, it employs a wide variety of social scientific methods, including qualitative and quantitative research techniques, to explore law and legal phenomena. Positivistic[46] as well as interpretive (such as discourse analysis) and ethnographic [47] approaches to data collection and analysis is used within the socio-legal field.[48]

Sociology of law was a small, but developing, sub-field of British sociology at the time when Campbell and Wiles wrote their review of law and society research in 1976. Unfortunately, despite its initial promise, it has remained a small field. Very few empirical sociological studies are published each year. Nevertheless, there have been some excellent studies, representing a variety of sociological traditions.

The two most popular approaches during the 1960s and 1970s were interactionism and Marxism. Interactionism had become popular in America in the 1950s and 1960s as a politically radical alternative to structural-functionalism. Instead of viewing society as a system regulating and controlling the actions of individuals, interactionists argued that sociology should address what people were doing in particular situations, and how they understood their own actions.[49] The sociology of deviance, which included topics such as crime, homosexuality, and mental illness, became the focus for these theoretical debates. Functionalists had portrayed crime as a problem to be managed by the legal system. Labeling theorists, by contrast, focused on the process of law-making and enforcement: how crime was constructed as a problem. A number of British sociologists, and some researchers in law schools, have drawn on these ideas in writing about law and crime.[50]

The most influential sociological approach during this period was, however, Marxism—which claimed to offer a scientific and comprehensive understanding of society as a whole in the same way as structural-functionalism, although with the emphasis on the struggle between different groups for material advantage, rather than value-consensus. This approach caught the imagination of many people with left-wing political views in law schools, but it also generated some interesting empirical studies. These included historical studies about how particular statutes were used to advance the interests of dominant economic groups, and also Pat Carlen's memorable ethnography,[51] which combined analytic resources from Marxism and interactionism, especially the sociology of Erving Goffman, in writing about magistrates' courts.

The 1980s were also a fruitful time for sociology of law in Britain, mainly because Donald Harris deliberately set out to create the conditions for a fruitful exchange between lawyers and sociologists at the Oxford Centre for Socio- Legal Studies. He was fortunate enough to recruit a number of young and talented social scientists, including J. Maxwell Atkinson and Robert Dingwall who were interested in ethnomethodology, conversation analysis, and the sociology of the professions, and Doreen McBarnet who became something of a cult figure on the left after publishing her doctoral thesis,[52] which advanced a particularly clear and vigorous Marxist analysis of the criminal justice system. Ethnomethodology has not previously been mentioned in this review, and tends to be over-looked by many reviewers in this field since it cannot easily be assimilated to their theoretical interests. One can note, however, that it has always offered a more radical and thorough-going way of theorizing action than interactionism (although the two approaches have a lot in common when compared to traditions that view society as a structural whole, like Marxism or structural-functionalism). During his time at the center, J. Maxwell Atkinson collaborated with Paul Drew, a sociologist at the University of York, in what became the first conversation analytic study of courtroom interaction, using transcripts of coroner's hearings in Northern Ireland.[53]

Another area of interest developed by the Oxford center during this period was the sociology of the professions. Robert Dingwall and Philip Lewis[54] edited what remains an interesting and theoretically diverse collection, bringing together specialists from the sociology of law and medicine. The best known study to date has, however, been published by an American legal scholar[55] who employed ideas and concepts from functionalist, Marxist, and Weberian sociology to explain the high incomes and status that British lawyers enjoyed for most of the twentieth century.

Since the 1980s, very little empirical research has been conducted by British sociologists. There are, however, some exceptions. To begin with, sociology of law, along with so many areas of academic work, has been enlivened and renewed through engagement with feminism. There has been a great deal of interest in the implications of Foucault's ideas on govemmentality for understanding law,[56] and also in continental thinkers such as Niklas Luhmann and Pierre Bourdieu. Again, one can argue that rather fewer empirical studies have been produced than one might have hoped, but a great deal of interesting work has been published.

A second exception is my own work,[57] which has employed resources from ethnomethodology and symbolic interactionism in studying legal settings. You can tell that this is sociological rather than socio-legal research because it continually engages in debate with other theoretical traditions in sociology. My doctoral thesis about the work of a firm of criminal lawyers took other sociologists, and especially Marxists, to task for not addressing or respecting how lawyers and clients understand their own actions (a standard argument used by ethnomethodologists in debates with structural traditions in the discipline). It also, however, explored issues raised by legal thinkers like Cotterrell in their critique of structural traditions in sociology of law: the extent to which social science can address the content of legal practice.

Devising a Sociological Concept of Law

In contrast to the traditional understanding of law (see the separate entry on law), the sociology of law does not normally view and define the law only as a system of rules, doctrine and decisions, which exist independently of the society out of which it has emerged. The rule-based aspect of law is, admittedly, important, but provides an inadequate basis for describing, analysing and understanding law in its societal context.[58] Thus, legal sociology regards law as a set of institutional practices which have evolved over time and developed in relation to, and through interaction with, cultural, economic and socio-political structures and institutions. As a modern social system, law does strive to gain and retain its autonomy in order to function independently of other social institutions and systems such as religion, polity and economy. Yet, it remains historically and functionally linked to these other institutions. Thus, one of the objectives of the sociology of law remains to devise empirical methodologies capable of describing and explaining modern law’s interdependence with other social institutions.[59]

Some influential approaches within the sociology of law have challenged definions of law in terms of official (state) law (see for example Eugen Ehrlich's concept of "living law" and Georges Gurvitch's "social law"). From this standpoint, law is understood broadly to include not only the legal system and formal (or official) legal institutions and processes, but also various informal (or unofficial) forms of nomativity and regulation which are generated within groups, associations and communities. The sociological studies of law are, thus, not limited to analysing how the rules or institutions of the legal system interact with social class, gender, race, religion, sexuality and other social categories. They also focus on how the internal normative orderings of various groups and “communities”, such as the community of lawyers, businessmen, scientists, members of political parties, or members of the Mafia, interact with each other. In short, law is studied as an integral and constitutive part of social institutions, groupings and communities. This approach is developed further under the section on legal pluralism[60].

The sociology of law also intersects with, and benefits from, other fields of legal research such as critical legal studies, jurisprudence, legal theory, law and psychology, legal anthropology, economic analysis of law, law and literature, social policy and criminology.

Contemporary Perspectives

Legal Pluralism

Legal pluralism is a concept developed by some legal sociologists and social anthropologists "to describe multiple layers of law, usually with different sources of legitimacy, that exist within a single state or society".[61] It is also defined “as a situation in which two or more legal systems coexist in the same social field”.[62] Legal pluralists define law broadly to include not only the system of courts and judges backed by the coercive power of the state, but also the “non-legal forms of normative ordering”.[63] Legal pluralism consists of many different methodological approaches and as a concept, it embraces “diverse and often contested perspectives on law, ranging from the recognition of different legal orders within the nation-state, to a more far reaching and open-ended concept of law that does not necessarily depend on state recognition for validity. This latter concept of law may come into being whenever two or more legal systems exist in the same social field”. [64]

Legal pluralism has occupied a central position in socio-legal theorising from the very beginning of the sociology of law. The sociological theories of Eugen Ehrlich and Georges Gurvitch were early sociological contributions to legal pluralism. It has, moreover, provided the most enduring topic of socio-legal debate over many decades within both the sociology of law and legal anthropology.[65] and has received more than its share of criticism from the proponents of the various schools of legal positivism.[66] The critics often ask: “How is law distinguished in a pluralist view from other normative systems? What makes a social rule system legal?”.[67]

The controversy arises mainly "from the claim that the only true law is the law made and enforced by the modern state".[68] This standpoint is also known as "legal centralism". From a legal centralist standpoint, John Griffiths writes, "law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administrated by a single set of sttae institutions. [69] Thus, according to legal centralism, "customary laws and religious laws are not propoerly called 'law' except in so far as state has chosen to adopt and treat any such normative order as part of its own law".[70]

A distinction is often made between the “weak” and the “strong" versions of legal pluralism. The “weak" version does not necessarily question the main assumptions of "legal centralism", but only recognises that within the domain of the Western state law other legal systems, such as customary or Islamic law, may also have an autonomous (co-)existence.[71] Thus, the "weak" version does not consider other forms of normative ordering as law. As Tamanaha, one of the critics of legal pluralism, puts it: “Normative ordering is, well, normative ordering. Law is something else, something that we isolate out and call law…”.[72] The "strong" version, on the other hand, rejects all legal centralist and formalist models of law, as “a myth, an ideal, a claim, an illusion,”[73] regarding state law as one among many forms of law or forms of social ordering. It insists that modern law is plural, that it is private as well as public, but most importantly “the national (public official) legal system is often a secondary rather than the primary locus of regulation”.[74]

The criticism directed at legal pluralism often uses the basic assumptions of legal positivism in order to question the validity of theories of legal pluralism which aim at criticising those very (positivistic) assumptions.[75] As Roger Cotterrell explains, the pluralist conception should be understood as part of “the legal sociologist’s effort to broaden perspectives on law. A legal sociologist’s specification of law might be different from that presupposed by a lawyer in practice, but it will relate (indeed, in some way incorporate) the latter because it must (if it is to reflect legal experience) take account of lawyers’ perspectives on law. Thus a pluralist approach in legal theory is likely to recognise what lawyers typically recognize as law, but may see this law as one species of a larger genus, or treat lawyers’ conception of law as reflecting particular perspectives determined by particular objectives”.[76]

Autopiesis

Humberto Maturana and Francisco Varela originally coined the concept of autopoiesis within theoretical biology to describe the self-reproduction of living cells through self-reference.[77] This concept was later borrowed, reconstructed in sociological terms, and introduced into the sociology of law by Niklas Luhmann.[78] Luhmann’s systems theory transcends the classical understanding of object/subject by regarding communication (and not ‘action’) as the basic element of any social system. He breaks with traditional systems theory of Talcott Parsons and descriptions based on cybernetic feedback loops and structural understandings of self-organisation of the 1960s. This allows him to work towards devising a solution to the problem of the humanised ‘subject’[79].

"Perhaps the most challenging idea incorporated in the theory of autopoiesis is that social systems should not be defined in terms of human agency or norms, but of communications. Communication is in turn the unity of utterance, information and understanding and constitutes social systems by recursively reproducing communication. This sociologically radical thesis, which raises the fear of a dehumanised theory of law and society, attempts to highlight the fact that social systems are constituted by communicative."[80]

According to Roger Cotterrell, “Luhmann treats the theory as the basis for all general sociological analysis of social systems and their mutual relationships [81]. But its theoretical claims about law’s autonomy are very powerful postulates, presented in advance of (and even, perhaps, in place of) the kind of detailed empirical study of social and legal change that comparatists and most legal sociologists are likely to favour. The postulates of autopiesis theory do not so much guide empirical research as explain conclusively how to interpret whatever this research may discover.” [82]

Legal Cultures

Legal culture is one of the central concepts of the sociology of law. The study of legal cultures may, at the same time, be regarded as one of the general approaches within the sociology of law.

As a concept, it refers to “relatively stable patterns of legally-oriented social behaviour and attitudes,” and as such is regarded as a subcategory of the concept of culture.[83] It is a relatively new concept which, according to David Nelken, can be traced to “terms like legal tradition or legal style, which have a much longer history in comparative law or in early political science. It presupposes and invites us to explore the existence of systematic variations in patterns in ‘law in the books’ and ‘law in action,’ and, above all, in the relation between them”.[84]

As an approach, it focuses on the cultural aspects of law, legal behaviour and legal institutions and, thus, has affinity with cultural anthropology, legal pluralism, and comparative law.

Lawrence M. Friedman is among socio-legal scholars who introduced the idea of legal culture into the sociology of law. For Friedman, legal culture “refers to public knowledge of and attitudes and behaviour patterns toward the legal system”.[85] It can also consist of “bodies of custom organically related to the culture as a whole.[86] Friedman stresses the plurality of legal cultures and points out that one can explore legal cultures at different levels of abstraction, e.g. at the level of the legal system, the state, the country, or the community. Friedman is also known for introducing the distinction between the “internal” and “external” legal cultures. Somewhat oversimplified, the former refers to the general attitudes and perceptions of law among the functionaries of the legal system, such as the judiciary, while the latter can refer to the attitude of the citizenry to the legal system or to law and order generally.

Feminism

Law has always been regarded as one of the important sites of political struggle for the feminist movement. As pointed out by Ruth Fletcher feminist engagement with the law has taken many forms through the years, which also indicates their successful merging of theory and practice: “Through litigation, campaigns for reform and legal education, feminists have engaged explicitly with law and the legal profession. In taking on the provisions of specialist advice services, women’s groups have played a role in making law accessible to those in need. By subjecting legal concepts and methods to critical analysis, feminists have questioned the terms of legal debate.” [87]

Globalization

Globalization is often defined in terms of economic processes which bring about radical cultural developments at the level of world society. Although law is an essential ingredient of the process of globalization -- and important studies of law and globalisation were already conducted in the 1990s by, for example, Dezalay & Garth (1996) and Gessner & Budak (1998) -- law's importance for creating and maintaining the globalization processes are often neglected within the sociology of globalization and remain, arguably, somewhat underdeveloped within the sociology of law.[88]

As pointed out by Halliday and Osinsky, “Economic globalization cannot be understood apart from global business regulation and the legal construction of the markets on which it increasingly depends. Cultural globalization cannot be explained without attention to intellectual property rights institutionalized in law and global governance regimes. The globalization of protections for vulnerable populations cannot be comprehended without tracing the impact of international criminal and humanitarian law or international tribunals. Global contestation over the institutions of democracy and state building cannot be meaningful unless considered in relation to constitutionalism.” [89]

The socio-legal approaches to the study of globalization and global society often overlap with, or make use of, studies of legal cultures and legal pluralism. [90]

References

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Professional Associations or Societies

Research Committee on Sociology of Law [91]

Socio-Legal Studies Association

International Institute for the Sociology of Law

Law and Society Association

Vereinigung für Recht und Gesellschaft

The Law and Society Association of Australia and New Zealand Inc. http://www.lsaanz.org/index.html

Canadian Law and Society Association / Association canadienne droit et société (CLSA/ACDS) http://www.acds-clsa.org/

RT 13 (Thematic Network) sociology of law of the French Sociological Association http://www.afs-socio.fr/rt13.html .

Sociedad argentina de sociología jurídica http://sasju.dyndns.org/

Associazione di studi su diritto e società (Italy) http://www.dirittoesocieta.it

Japanese Association of Sociology of Law http://wwwsoc.nii.ac.jp/hosha/english/eindex.htm

Journals

The Nordic Journal of Law and Justice [4]

Zeitschrift für Rechtssoziologie [5]

Law and Society Review

The Journal of Law and Society [6]

Journal of Empirical Legal Studies

Canadian Journal of Law and Society / Revue Canadienne Droit et Société / (since 1985) http://www.utpjournals.com/cjls/cjls.html

Canadian Journal of Women and the Law (since 1985) http://www.utpjournals.com/cjwl/cjwl.html

Droit et Société (Paris, France, since 1985) http://www.reds.msh-paris.fr/publications/revue/revue-en-ligne.htm

International Journal of the Sociology of Law (since 1978) http://www.elsevier.com/wps/find/journaldescription.cws_home/622848/...

Revue interdisciplinaire d'études juridiques (Brussels, Belgium, since 1978)

Social & Legal Studies (London, United Kingdom, since 1992) http://sls.sagepub.com/

Sociologia del Diritto (Milan, Italy, since 1974 ) http://www.francoangeli.it/riviste/sommario.asp?IDRivista=51

Research Centres

Baldy Center for Law and Social Policy http://www.law.buffalo.edu/baldycenter/

Centre d'étude, de technique et d'évaluation législatives Université de Genève http://www.unige.ch/droit/cetel/

Centre for Law and Society, School of Law, University of Edinburgh http://www.law.ed.ac.uk/cls/

Centre for Socio-Legal Research - University of Capetown, South Africa http://www.uct.ac.za/depts/slr/

Centre for Socio-Legal Studies - University of Natal, South Africa http://www.csls.org.za/

Center for Socio-Legal Studies - University of Oxford http://www.csls.ox.ac.uk/

Centre for the Study of Law and Society, California, Berkeley, USA http://www.law.berkeley.edu/institutes/csls/about.html / newly: http://law.berkeley.edu/centers/csls/

European Academy for Law and Legislation (http://www.eall.eu/)

Foundation for Law, Justice and Society, Wolfson College, Oxford http://www.fljs.org

Institute of Global Law http://www.ucl.ac.uk/laws/global_law/

Institute of Law and Social Sciences, Meiji University, Tokyo, Japan http://www.meiji.ac.jp/dai_in/law/support/html/english/e_index.html

Institute for Legal Studies, University of Wisconsin, USA http://www.law.wisc.edu/ils/

International Institute for the Sociology of Law, Oñati http://www.iisj.net/

Justice Policy Research Centre - University of Newcastle, Australia http://www.newcastle.edu.au/school/law/jprc/index.html

Laboratoire de sociologie juridique (Paris 2) http://www.u-paris2.fr/52075380/0/fiche___laboratoire/&RH=LABO

Legal Intersections Research Centre - University of Wollongong, Canada http://www.uow.edu.au/law/LIRC

Observatório Permanente da Justiça Portuguesa (Coimbra) http://opj.ces.uc.pt/portugues/apresentacao/

Oxford Centre for Family Law and Policy, UK http://www.spsw.ox.ac.uk/fileadmin/static/Oxflap/

Research Institute for Law, Politics & Justice Keele University http://www.keele.ac.uk/research/lpj/index.htm

Notes

  1. ^ For various definitions of the sociology of law see: Ehrlich 1936 (orig 1912); Timasheff 1939; Pound 1943; Selznik 1965, Aubert 1969 and 1980; Black 1972; Stjernquist 1983; Hydén 1986; Tomasic 1987; Podgorecki 1991, Cotterrell 1992, Banakar 2003; Mathiesen 2005, Deflem 2008, Travers 2009, Nelken 2009.
  2. ^ See Deflem 2008:3
  3. ^ Banakar 2003 and 2009.
  4. ^ Cotterrell 2007.
  5. ^ Banakar and Travers 2005, pp. 1-25.
  6. ^ See Black 1976; Cotterrell 1992; Hunt 1993; Santos 2002; Banakar 2003; Banakar and Travers 2002; Ferrari 1989; Luhmann 1985; Trevino 2008; Travers 2009, Nelken 2009.
  7. ^ See Auguste Comte, Max Weber, Emil Durkheim, Bronisław Malinowski, Alfred Reginald Radcliffe-Brown and E. E. Evans-Pritchard.
  8. ^ Durkheim, 1984: 24.
  9. ^ Banakar, 2009.
  10. ^ For a discussion see Banakar 2008.
  11. ^ For a presentation of this debate and references to the original sources of the debate see van Klink 2006. For an analysis of the debate between Kelsen and Ehrlich see Banakar 2008. Banakar argues that Kelsen could not help but missing the point that Ehrlich was making by his distinction.
  12. ^ Rottleuthner, La Sociologie du Droit en Allemagne, 109
    * Rottleuthner, Rechtstheoritische Probleme der Sociologie des Rechts, 521
  13. ^ Rheinstein, Max Weber on Law and Economy in Society, 336
  14. ^ Jary, Collins Dictionary of Sociology, 636
  15. ^ Johnson, The Blackwell Dictionary of Sociology, 156
  16. ^ Gurvitch, Sociology of Law, 142
    * Papachristou, Sociology of Law, 81–82.
  17. ^ Deflem, 2007.
  18. ^ Cotterrell, 1999.
  19. ^ Ehrlich 1936 (orig. 1912).
  20. ^ Ziegert 1979.
  21. ^ Petrazycki1955.
  22. ^ Banakar 2006; also see Podgórecki 1980; Kurczewski 2009.
  23. ^ Agersnap 2000; Hammerslev 2007.
  24. ^ Ghezzi 2007.
  25. ^ Ghezzi 2007.
  26. ^ see Gurvitch, Georges, L’idée du droit social (1932)
  27. ^ Banakar 2000.
  28. ^ Ferrari 2007.
  29. ^ Arnaud 2007.
  30. ^ Arnaud 2007.
  31. ^ Nonet and Selznick 1978.
  32. ^ Kalleberg 2000: 401.
  33. ^ See for example Podgorecki 1973 and 1974.
  34. ^ Czarnota 2009.
  35. ^ Deflem 2007.
  36. ^ Friedman 1986.
  37. ^ For an example see Friedman 1975.
  38. ^ For a discussion see Banakar 2009
  39. ^ See Banakar 2002
  40. ^ Banakar 2009.
  41. ^ Banakar 2009
  42. ^ Thomas 1997.
  43. ^ Campbell 1976.
  44. ^ Travers 2001
  45. ^ Travers 2001: 26
  46. ^ See Black 1976.
  47. ^ See Travers 1997, Flood 2005 and 1979.
  48. ^ For an overview of various methods see Banakar and Travers 2005.
  49. ^ See, for example, Becker 1963
  50. ^ See, for example, Paterson 1982; Flood 1983
  51. ^ Pat Carlen 1976
  52. ^ Doreen McBarnet 1981
  53. ^ Atkinson and Drew, 1979
  54. ^ Robert Dingwall and Philip Lewis 1983.
  55. ^ Abel 1988
  56. ^ Hunt and Wickham 1996
  57. ^ Travers 1997; 1999
  58. ^ Banakar 2009; Nelken 2009.
  59. ^ For a discussion see Banakar and Travers 2005 and Banakar 2009.
  60. ^ For studies of legal pluralism see Dalberg-Larsen 2000; Merry 1988; Chiba 1989; John Griffiths 1986; Olgiati 2009.
  61. ^ Olgiati 2007; also see Olgiati 2009.
  62. ^ Sally Engle Merry 1988.
  63. ^ Merry 1988.
  64. ^ Ann Griffiths 2002.
  65. ^ Banakar 2003.
  66. ^ See for example Tamanaha 2001.
  67. ^ Cotterrell 2006: 37
  68. ^ Woodman 2008: 25.
  69. ^ John Griffiths 1986: 3)
  70. ^ Woodman 2008: 25.
  71. ^ Ann Griffiths, 2002: 291.
  72. ^ Tamanaha 1993: 1999.
  73. ^ John Griffiths 1986: 4.
  74. ^ Galanter 1981: 20.
  75. ^ See Banakar 2008
  76. ^ Cotterrell 2006: 37
  77. ^ Maturana and Varela 1980.
  78. ^ See Ziegert 2002.
  79. ^ Luhmann 2004.
  80. ^ Banakar and Max Travers 2005: 28.
  81. ^ Luhmann 1995.
  82. ^ Cotterrell 2006: 138.
  83. ^ Nelken, 2004: 1.
  84. ^ Nelken 2007.
  85. ^ Friedman, 1975, p. 193
  86. ^ Friedman, 1975, p. 194
  87. ^ Fletcher 2002.
  88. ^ For one of the relatively early empirical studies see Dezalay and Garth 1996. For a collection of empirical studies of law and globalization see Gessner and Budak 1998.
  89. ^ Halliday and Osinsk 2006.
  90. ^ See Teubner 1996; Feest and Nelken 2007, Friedman and Perez-Perdomo 2003.
  91. ^ (RCSL)http://rcsl.iscte.pt/


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